It the medieval tradition and the position

It is “to every subject, those rules which the commonwealth has commanded him, by word, writing, or other sufficient sign of the will, to make use of, for the distinction of right and wrong”.

Natural law or customs and conventions attain the status of Law only when willed and ordained by the sovereign. Hobbes makes a radical departure from the medieval tradition and the position of Sir Edward Coke who pleaded for the supremacy of common law, as against the authority of both Parliament and the King.

Your time is important. Let us write you an essay from scratch
100% plagiarism free
Sources and citations are provided

Get essay help

He brought to completion the process of subordinating the church to the state which was initiated by Marsilio’s demarcation between temporal and spiritual powers, and swept aside the limitations of Divine Law, of Constitutional law and property rights that Bodin had imposed on his sovereign. Hobbes’ theory was further developed by the analytical jurists of the 19th and 20th centuries. Not only John Austin and his school, but Kelsen, Hart and many other positivists were at one with Hobbes in effecting a clean separation between law and morals.

Liberty is the silence of law. In other words, a citizen is free to close or forbear what the sovereign has not commanded or forbidden. However, the command of the sovereign cannot annul the subjects’ right to self- preservation. If a sovereign commands someone to kill himself, he is not bound to abide by it, for the sole purpose of the establishment of civil society is the preservation of life.

It is, of course, up to the sovereign to kill or not to kill a person in the interest of peace and security of the commonwealth, but this does not imply that the subject himself is obliged to end his life, or any others’ life when ordered to do so by the sovereign. “When therefore our refusal to obey, frustrates the end for which sovereignty was ordained, then there is no liberty to refuse: otherwise there is.”

In Hobbes there is no general right to disobedience or rebellion. The authority of the sovereign is absolute and irrevocable. To resist him is to commit what may be called a performative contradiction. For the subjects have authorised all his actions as their own and nobody can go against his own will. Moreover, to resist or disobey the sovereign is to opt for the state of nature, where there is no right or wrong.

However, it must be always remembered that the “obligation of the subject to the sovereign, is understood to last as long, and no longer, than the power lasteth, by which he is able to protect them.” “For the right men have by nature to protect themselves, when none else can protect them, can be no covenant be relinquished.”

Hence, if the sovereign fails to put down a rebellion and the rebels succeed in establishing their own regime and in giving the required security to their subjects, he ipso facto loses his legitimacy and the new regime becomes the real commonwealth. It was in this way that Hohbes sought to justify the rule of Oliver Cromwell.

There can be no legitimate government without effective power to back it. As Sabine puts it: “The aspiration for more justice and right seemed to him (Hobbes) merely an intellectual confusion.

Hatred of tyranny seemed mere dislike of a particular exercise of power, and enthusiasm for liberty seemed either sentimental vapouring or outright hypocrisy.”